8 ms·

Dutch court: selling e-books second hand is legal

103 points by bartkappenburg 12y ago

skywhopper 12y ago
This is encouraging news. A huge blow to fair use and access to media is being struck as we move to electronic formats for music, movies, and books. Libraries, rental services, used bookstores, and more depend on this concept to allow greater and fairer access to media. How we transition this concept into the world of digital media will greatly effect the extent to which we can fulfill the promise of computers and the Internet to make life better. The First Sale Doctrine may be difficult to apply in a world of digital media, but it is not more difficult to apply than Copyright itself. Establishing a legal right to resell digital goods is a necessary counterbalance to the evergrowing power of Copyright owners over how we use our computers.
- otoburb 12y ago
  Would artificial scarcity via fingerprinting (e.g. a unique hash to establish authenticity of ownership) per electronic copy help or hinder digital good resales? I would support a token/watermark that proves authenticity of ownership, but can see where other more militant may say that this feels like a form of DRM (albeit without actual encryption or restrictions beyond the inclusion of the nonce to generate a unique signature). In practice and within today's environment the idea of fingerprinting would be silly because it would be relatively easy to produce an unmarked copy, as is already the case with DRM protected .MOBI or .EPUB formats anyway.
  - wmf 12y ago
    Unless the fingerprint could be updated upon resale (how?) it wouldn't prove much. Fingerprinting also doesn't seem to deter reselling multiple copies unless all the buyers cooperate.
  - ThomPete 12y ago
    Cryptoprotocol could allow for this.
- izzydata 12y ago
  I don't disagree, but it seems weird to treat physical media and digital media of a similar type exactly the same when they are simply aren't the same. The truth is you can make infinite copies of an e-book.
  - infinite8s 12y ago
    You can also make near 0-cost copies of physical books. Only thing stopping you is copyright law.
    - bjelkeman-again 12y ago
      Ok, i'll bite. How do yo do that? Let's say I have an 800 page Neal Stephenson hardback. I don't want to destroy the book, but I want to copy it. How do I copy that at 0-cost? Even with a borrowed laser printer/copier with free toner and paper I imagine I have to open the book 400 times and push it onto the copier glass and make a copy. That will take me 5 sec per spread, so say 10 spreads per minute. If I am done just under an hour, then I will have lost $100 of invoicable time. So, that wasn't 0-cost. You must have another way?
      - teddyh 12y ago
        The marginal cost is 0. Since, once you have made your digital copy, you can make infinite copies, your amortized cost per copy approaches 0.
        seanflyon 12y ago
        And what would the marginal cost be if paper and ink were not free? Not the full price of a new book, but I'm guessing a significant portion.
        teddyh 12y ago
        The marginal cost of a physical copy does not approach 0, true.
- tomphoolery 12y ago
  "Why the fuck do you get to resell something that I made? It's mine, I should get the money for it. Why do you get the money for it? Fuck you, I want my money!" is pretty much how I feel when I hear about people re-selling digital goods. It doesn't make any sense to me. Please explain how the original content creator profits off of this, if he/she doesn't then I believe this ruling is not only immoral, it's also completely stupid.
  - teddyh 12y ago
    If you could clarify why your argument applies to digital media but not physical media, it would help. Or, alternately, do you believe that resale of a thing you made should benefit only you? Is that in perpetuity, or how long should this last?
    - baddox 12y ago
      I'm not a fan of the way that argument was phrased, but the obvious difference is the physical difference between how a physical object is "stolen" and how a digital work is "stolen." It just comes down to property rights, which are subjective and change over time. Under my own subjective impression of property rights, someone breaking into my house and taking a sculpture I made is a violation of my rights, but if I sell a CD to someone and they give away a copy of it, I don't feel like there was a violation.
      - alexqgb 12y ago
        When it comes to unauthorized copies that do not fall within the parameters of fair use, the theft - for lack of a better word - is not of the copy in question. The bone of contention is actually the money that you would have paid to the author in the case of a legal transaction, and which you "save" in the case of an illegal duplication. It's kind of like "saving" money on milk by walking out of the store without paying for it. Whether you're taking possession of a finite physical good, or increasing the legally regulated supply an intangible one, you're doing something that - by law - triggers an obligation to pay another person money. Disregarding the obligation by making a copy and retaining possession of the money which, by right, you now owe another, is where specific and definable deprivation enters the picture. When people who understand what they're talking about refer to "theft" in relation to the unauthorized duplication of intangible goods, this is what they mean.
Joeri 12y ago
Not quite what the article says. The judge has punted the question to the EU level, and denied granting an injunction prohibiting the resale. It's still perfectly possible that the court will rule the site in question is not operating legally.
- bartkappenburg 12y ago
  Maybe I should have said "for now"
  - seanflyon 12y ago
    Even that is misleading in my opinion because the court did not say that reselling e-books is legal for now. The court declined to grant an injunction.
- SEMW 12y ago
  True, but there's a good reason to think the CJEU will give the right answer: Oracle v Usedsoft[1] was only a couple of years ago, which upheld that first sale doctrine for software (i.e. that even a supposedly non-transferable software licence still counted as a sale for the purposes of that doctrine). I think that ruling was under the software directive rather than the IS directive, but the logic seems like it'd apply just as well to ebooks (and I doubt the two directives differ much on first sale, though I haven't checked), so I'd be surprised if we don't get a similar result here. IANAL, though. [1] http://curia.europa.eu/juris/document/document.jsf?docid=124564&doclang=EN http://curia.europa.eu/juris/document/document.jsf?docid=124... , summary at http://www.linklaters.com/Publications/Publication1403Newsletter/TMT-News-November-2012/Pages/EU-Used-Soft-Oracle-ECJ-approves-sale-used-software.aspx http://www.linklaters.com/Publications/Publication1403Newsle... , HN discussion at https://news.ycombinator.com/item?id=4193413 https://news.ycombinator.com/item?id=4193413
  - grabeh 12y ago
    IS directive specifically references tangible goods as opposed to the Software directive which makes no distinction. At least in this respect it looks like first sale may be limited to software for the time being at least on the basis of post-Usedsoft case law, but we shall see! http://www.osborneclarke.com/connected-insights/publications/e-commerce-law-and-policy-article-re-sale-rights-digital-content/ http://www.osborneclarke.com/connected-insights/publications...
deleted 12y ago
[deleted]
zorbo 12y ago
Meanwhile we're stuck with price-fixing on books (by law) in the Netherlands which, IMHO, is a much much larger problem than the legality of reselling of e-books. And although that law doesn't apply to e-books, retailers so far haven't deviated from that norm, probably because it let's them line their pockets too. For any other industry such price-fixing would be considered illegal, but for some reason the publishing and media industries have been exempt.
jiggy2011 12y ago
The article seems to be down for me. But I'm curious if there would be any mechanism in place to limit used sales in any way since electronic copies do not suffer from the same problems of wear and tear etc that a physical book would. If I can buy a used copy of a digital book cheaper then there is really no reason ever to buy a new copy. Hell , if the market is convenient and has enough liquidity then what's to stop me from buying a book, reading a chapter and then selling it and buying the same book back again at a reduced price when I want to read the second chapter? I could see this might cause the price for ebooks to crash towards 0 unless there is something in place to rate limit purchases/sales.
bellerocky 12y ago
Steam lets you trade and sell digital goods that you bought from steam. For reselling of digital goods I think you either need a centralized system that that is the trusted arbitrator of who owns what and is involved in all transactions your use a distributed system like bitcoin where a p2p network creates a consensus on who owns what. So I think this can be done. You can't stop the seller from continuing to consume the content after they sell it, but at least they wont be able to sell it again. Nice clients might make it so that you have to prove that you own something through the system, without even needing DRM, but of course this is mostly an honor system.
- tokenizerrr 12y ago
  > Steam lets you trade and sell digital goods that you bought from steam Do they? Only if you haven't claimed the game, I believe. You cannot sell (or trade) games that you have in your library.
  - Natsu 12y ago
    Yes, there are significant restrictions and you can't take a game out of your library and gift it, for example. I believe there may be other restrictions on, for example, having people trade when one person is in a low price region and gifting to someone higher, but I'm not very familiar with the details.
    - concerned_user 12y ago
      These are not restrictions. At this point you DO NOT own a game yet, it is still packaged like an unopened box wrapped in plastic wrap. It is essentially the same as if you buy a new phone or dvd and without doing anything to the box simply resell it to a different person. Toying with gifts the way you mention may get you banned, there are certain restrictions as well which may result in you not being able to launch a game since you are not in the specified region (ip check) and vpn/proxy use is against ToS so it is a gray area, you keep doing it and you get banned eventually. When it comes to TF2 items each player has a choice whether he invests time or money to get the resources to craft items, i'm not an expert on this but since resources are made literally out of thin air there is mostly supply/demand.
seanflyon 12y ago
I am going to submit a minority opinion here and say that I think publishers should be allowed to sell you a non-transferable license to access a e-book. If Disneyland wants to sell you a non-transferable season pass, I see nothing wrong with that. I'm not proposing that we take away your right to resell, I'm arguing that we allow you to buy something less valuable. A non-transferable license is worth less than a transferable license, and if it does not cost less you should not but it, but that is a pricing issue.
- r00fus 12y ago
  As long as they are forced to sell you a transferrable version, I'd say that's ok. The danger is the case when only non-transferrable licenses exist for all media due to industry collusion.
  - seanflyon 12y ago
    Forcing them to sell you a transferable version seems reasonable, but I still disagree. First, forcing them to sell you something is meaningless unless you force them to sell it to you at a reasonable price, so you plan requires price fixing. Second, collusion is already illegal. Finally, I don't see the danger. This is already quickly becoming the case for video games and has been great for the industry, both developer and consumer.
    - r00fus 12y ago
      > Second, collusion is already illegal. How do you explain region codes and industry-wide DRM? (esp. for videos - non DRM'd digital video is almost nonexistent).
      - seanflyon 12y ago
        Different companies can use the same format without colluding. Are you suggesting that in a competitive environment content companies could not afford to anger their customer buy using DRM? These companies believe that they would lose more sales by not having DRM than by having it. Look at GoG vs Steam. GoG gets some bonus points for not having DRM, but having DRM doesn't seem to costing Steam too many sales.
acd 12y ago
I pay tax on hard disks to be able to private copy music and videos yet they are protected by DRM so its not possible to copy music to your friends, this should also be challenged. Either there are DRM and no copy tax or there are no DRM and you are allowed to copy. Same goes for HDMI.
ThomPete 12y ago
This is where a crypto-protocol could come in use. Basically allowing people to buy books and resell with guarantee it's the original. This might even allow the books to be sold more expensive.

103 points by bartkappenburg 12y ago

This is encouraging news. A huge blow to fair use and access to media is being struck as we move to electronic formats for music, movies, and books. Libraries, rental services, used bookstores, and more depend on this concept to allow greater and fairer access to media. How we transition this concept into the world of digital media will greatly effect the extent to which we can fulfill the promise of computers and the Internet to make life better. The First Sale Doctrine may be difficult to apply in a world of digital media, but it is not more difficult to apply than Copyright itself. Establishing a legal right to resell digital goods is a necessary counterbalance to the evergrowing power of Copyright owners over how we use our computers.

otoburb 12y ago
Would artificial scarcity via fingerprinting (e.g. a unique hash to establish authenticity of ownership) per electronic copy help or hinder digital good resales? I would support a token/watermark that proves authenticity of ownership, but can see where other more militant may say that this feels like a form of DRM (albeit without actual encryption or restrictions beyond the inclusion of the nonce to generate a unique signature). In practice and within today's environment the idea of fingerprinting would be silly because it would be relatively easy to produce an unmarked copy, as is already the case with DRM protected .MOBI or .EPUB formats anyway.
- wmf 12y ago
  Unless the fingerprint could be updated upon resale (how?) it wouldn't prove much. Fingerprinting also doesn't seem to deter reselling multiple copies unless all the buyers cooperate.
- ThomPete 12y ago
  Cryptoprotocol could allow for this.
izzydata 12y ago
I don't disagree, but it seems weird to treat physical media and digital media of a similar type exactly the same when they are simply aren't the same. The truth is you can make infinite copies of an e-book.
- infinite8s 12y ago
  You can also make near 0-cost copies of physical books. Only thing stopping you is copyright law.
  - bjelkeman-again 12y ago
    Ok, i'll bite. How do yo do that? Let's say I have an 800 page Neal Stephenson hardback. I don't want to destroy the book, but I want to copy it. How do I copy that at 0-cost? Even with a borrowed laser printer/copier with free toner and paper I imagine I have to open the book 400 times and push it onto the copier glass and make a copy. That will take me 5 sec per spread, so say 10 spreads per minute. If I am done just under an hour, then I will have lost $100 of invoicable time. So, that wasn't 0-cost. You must have another way?
    - teddyh 12y ago
      The marginal cost is 0. Since, once you have made your digital copy, you can make infinite copies, your amortized cost per copy approaches 0.
      - seanflyon 12y ago
        And what would the marginal cost be if paper and ink were not free? Not the full price of a new book, but I'm guessing a significant portion.
        teddyh 12y ago
        The marginal cost of a physical copy does not approach 0, true.
tomphoolery 12y ago
"Why the fuck do you get to resell something that I made? It's mine, I should get the money for it. Why do you get the money for it? Fuck you, I want my money!" is pretty much how I feel when I hear about people re-selling digital goods. It doesn't make any sense to me. Please explain how the original content creator profits off of this, if he/she doesn't then I believe this ruling is not only immoral, it's also completely stupid.
- teddyh 12y ago
  If you could clarify why your argument applies to digital media but not physical media, it would help. Or, alternately, do you believe that resale of a thing you made should benefit only you? Is that in perpetuity, or how long should this last?
  - baddox 12y ago
    I'm not a fan of the way that argument was phrased, but the obvious difference is the physical difference between how a physical object is "stolen" and how a digital work is "stolen." It just comes down to property rights, which are subjective and change over time. Under my own subjective impression of property rights, someone breaking into my house and taking a sculpture I made is a violation of my rights, but if I sell a CD to someone and they give away a copy of it, I don't feel like there was a violation.
    - alexqgb 12y ago
      When it comes to unauthorized copies that do not fall within the parameters of fair use, the theft - for lack of a better word - is not of the copy in question. The bone of contention is actually the money that you would have paid to the author in the case of a legal transaction, and which you "save" in the case of an illegal duplication. It's kind of like "saving" money on milk by walking out of the store without paying for it. Whether you're taking possession of a finite physical good, or increasing the legally regulated supply an intangible one, you're doing something that - by law - triggers an obligation to pay another person money. Disregarding the obligation by making a copy and retaining possession of the money which, by right, you now owe another, is where specific and definable deprivation enters the picture. When people who understand what they're talking about refer to "theft" in relation to the unauthorized duplication of intangible goods, this is what they mean.

Joeri 12y ago

Not quite what the article says. The judge has punted the question to the EU level, and denied granting an injunction prohibiting the resale. It's still perfectly possible that the court will rule the site in question is not operating legally.

bartkappenburg 12y ago
Maybe I should have said "for now"
- seanflyon 12y ago
  Even that is misleading in my opinion because the court did not say that reselling e-books is legal for now. The court declined to grant an injunction.
SEMW 12y ago
True, but there's a good reason to think the CJEU will give the right answer: Oracle v Usedsoft[1] was only a couple of years ago, which upheld that first sale doctrine for software (i.e. that even a supposedly non-transferable software licence still counted as a sale for the purposes of that doctrine). I think that ruling was under the software directive rather than the IS directive, but the logic seems like it'd apply just as well to ebooks (and I doubt the two directives differ much on first sale, though I haven't checked), so I'd be surprised if we don't get a similar result here. IANAL, though. [1] http://curia.europa.eu/juris/document/document.jsf?docid=124564&doclang=EN http://curia.europa.eu/juris/document/document.jsf?docid=124... , summary at http://www.linklaters.com/Publications/Publication1403Newsletter/TMT-News-November-2012/Pages/EU-Used-Soft-Oracle-ECJ-approves-sale-used-software.aspx http://www.linklaters.com/Publications/Publication1403Newsle... , HN discussion at https://news.ycombinator.com/item?id=4193413 https://news.ycombinator.com/item?id=4193413
- grabeh 12y ago
  IS directive specifically references tangible goods as opposed to the Software directive which makes no distinction. At least in this respect it looks like first sale may be limited to software for the time being at least on the basis of post-Usedsoft case law, but we shall see! http://www.osborneclarke.com/connected-insights/publications/e-commerce-law-and-policy-article-re-sale-rights-digital-content/ http://www.osborneclarke.com/connected-insights/publications...

deleted 12y ago

[deleted]

zorbo 12y ago

Meanwhile we're stuck with price-fixing on books (by law) in the Netherlands which, IMHO, is a much much larger problem than the legality of reselling of e-books. And although that law doesn't apply to e-books, retailers so far haven't deviated from that norm, probably because it let's them line their pockets too. For any other industry such price-fixing would be considered illegal, but for some reason the publishing and media industries have been exempt.

jiggy2011 12y ago

The article seems to be down for me. But I'm curious if there would be any mechanism in place to limit used sales in any way since electronic copies do not suffer from the same problems of wear and tear etc that a physical book would. If I can buy a used copy of a digital book cheaper then there is really no reason ever to buy a new copy. Hell , if the market is convenient and has enough liquidity then what's to stop me from buying a book, reading a chapter and then selling it and buying the same book back again at a reduced price when I want to read the second chapter? I could see this might cause the price for ebooks to crash towards 0 unless there is something in place to rate limit purchases/sales.

bellerocky 12y ago

Steam lets you trade and sell digital goods that you bought from steam. For reselling of digital goods I think you either need a centralized system that that is the trusted arbitrator of who owns what and is involved in all transactions your use a distributed system like bitcoin where a p2p network creates a consensus on who owns what. So I think this can be done. You can't stop the seller from continuing to consume the content after they sell it, but at least they wont be able to sell it again. Nice clients might make it so that you have to prove that you own something through the system, without even needing DRM, but of course this is mostly an honor system.

tokenizerrr 12y ago
> Steam lets you trade and sell digital goods that you bought from steam Do they? Only if you haven't claimed the game, I believe. You cannot sell (or trade) games that you have in your library.
- Natsu 12y ago
  Yes, there are significant restrictions and you can't take a game out of your library and gift it, for example. I believe there may be other restrictions on, for example, having people trade when one person is in a low price region and gifting to someone higher, but I'm not very familiar with the details.
  - concerned_user 12y ago
    These are not restrictions. At this point you DO NOT own a game yet, it is still packaged like an unopened box wrapped in plastic wrap. It is essentially the same as if you buy a new phone or dvd and without doing anything to the box simply resell it to a different person. Toying with gifts the way you mention may get you banned, there are certain restrictions as well which may result in you not being able to launch a game since you are not in the specified region (ip check) and vpn/proxy use is against ToS so it is a gray area, you keep doing it and you get banned eventually. When it comes to TF2 items each player has a choice whether he invests time or money to get the resources to craft items, i'm not an expert on this but since resources are made literally out of thin air there is mostly supply/demand.

seanflyon 12y ago

I am going to submit a minority opinion here and say that I think publishers should be allowed to sell you a non-transferable license to access a e-book. If Disneyland wants to sell you a non-transferable season pass, I see nothing wrong with that. I'm not proposing that we take away your right to resell, I'm arguing that we allow you to buy something less valuable. A non-transferable license is worth less than a transferable license, and if it does not cost less you should not but it, but that is a pricing issue.

r00fus 12y ago
As long as they are forced to sell you a transferrable version, I'd say that's ok. The danger is the case when only non-transferrable licenses exist for all media due to industry collusion.
- seanflyon 12y ago
  Forcing them to sell you a transferable version seems reasonable, but I still disagree. First, forcing them to sell you something is meaningless unless you force them to sell it to you at a reasonable price, so you plan requires price fixing. Second, collusion is already illegal. Finally, I don't see the danger. This is already quickly becoming the case for video games and has been great for the industry, both developer and consumer.
  - r00fus 12y ago
    > Second, collusion is already illegal. How do you explain region codes and industry-wide DRM? (esp. for videos - non DRM'd digital video is almost nonexistent).
    - seanflyon 12y ago
      Different companies can use the same format without colluding. Are you suggesting that in a competitive environment content companies could not afford to anger their customer buy using DRM? These companies believe that they would lose more sales by not having DRM than by having it. Look at GoG vs Steam. GoG gets some bonus points for not having DRM, but having DRM doesn't seem to costing Steam too many sales.

acd 12y ago

I pay tax on hard disks to be able to private copy music and videos yet they are protected by DRM so its not possible to copy music to your friends, this should also be challenged. Either there are DRM and no copy tax or there are no DRM and you are allowed to copy. Same goes for HDMI.

ThomPete 12y ago

This is where a crypto-protocol could come in use. Basically allowing people to buy books and resell with guarantee it's the original. This might even allow the books to be sold more expensive.